Simplifying adoption laws

Some 4,500 adoptions are made each year in England and Wales, yet the incidence of adoption is declining, with about 4,000 children candidates for adoption and many would-be adopters in waiting. There are around 65,000 children in care, often as a result of abuse or neglect. The British Association for Adoption and Fostering BAAF holds a register seeking matching, containing hundreds of entries.

Against this background, the purpose of the Adoption and Children Act 2002 was to simplify and expedite the adoption process (P [2007] EWCA Civ 616), always subject to the paramount consideration of the child’s welfare, which the courts have had to examine in a range of circumstances.

Parents’ consent

With the consent of the parents the child may be placed with prospective adopters. At any time after the child is six weeks old the parents may give consent to the adoption. This two-stage process should enable a speedy, secure and consensual adoption to take place in due course (C [2008] EWHC 2555 (Fam)).

Unmarried and same-sex couples are eligible to adopt and there can be no discrimination against single, married couples or unmarried couples (see re P [2008] UKHL 38).

Nor can single parents be discriminated. In C v XYZ County Council [2007] EWCA Civ 1206). A single woman gave birth to a child and immediately applied for adoption. She did not wish the putative father, who knew nothing of the pregnancy and birth, to be consulted; nor her own family. The court held it was a matter for the judge to consider, applying as always the paramountcy principle. In B [2001] UKHL 70, a single mother wanted her child to be adopted while the father wanted to have the child to live with him. The mother consented, and a joint parental responsibility agreement was entered into, and subsequently, she agreed to an adoption order in favour of the father, which the judge granted.

The parents’ consent may be dispensed with where there is a good reason, including evidence that the natural parents have been abusing the child.

Likewise, parents can have their child placed for adoption if their relationship involves alcohol, drugs and violence. In P [2007] EWCA Civ 616 the parents applied for leave to oppose the adoption on the basis of a change in their circumstances, namely that they had addressed their deficiencies and were now successfully looking after their other children. The court held it was a matter within the judge’s discretion to assess.

Revocation and setting aside

Parents may apply to revoke a placement order under section 24 of the 2002 Act if a change of circumstances can be shown and a reasonable prospect of success in the application. An analysis of the welfare of the child will be required. If the placement order has not yet been put into effect the local authority should await the outcome of the proceedings (see M v Warwickshire County Council [2007] EWCA Civ 1084, [2008] EWCA Civ 1333).

But because adoption is a matter of finality, judges tend to be reluctant to set aside an adoption order. This may be so even if the parents can show that the evidence before the judge at the time of the order was mistaken or wrong, and that could not reasonably have been realised at the time, and in consequence the parents may be said to have suffered an injustice (Webster v Norfolk County Council [2009] EWCA Civ 59, which involved belated evidence that non-accidental injury may in fact have been an unusual scurvy).

Sensitive issues

In contemporary society there are certain sensitive and controversial issues on which those involved in the adoption process may hold certain views. Take for instance the following situations: the candidate adopter are Plymouth Brethren, or Jehovah’s Witnesses, or they are white and unwilling to take an ethnic child, or they are both of the same sex, or they are unmarried and reject the concept of marriage, or they are smokers.

These applicants may have grounds to claim unfair and unlawful discrimination under article 14 ECHR or interference with family life in article 8.

Christians hostile to the practice of homosexuality have found themselves affected in a variety of ways. Would-be applicants for the role of foster parents have been refused consideration because of their Christian commitment (see Johns v Derby City Council [2011] EWHC 375 (Admin)). Would-be adopters could similarly be turned down because of their Christianity.

International aspects

If the court is satisfied that the applicants, foreigners, intend to apply for an adoption order in the foreign country and have obtained parental responsibility in England the court may give approval for the child to go abroad for the purpose of the requirement of having a home with the applicants for at least ten weeks before the court finally approving of the child then going abroad for the foreign court to make an adoption order in accordance with their laws (A [2009] EWCA Civ 41). But no child may be sent abroad for adoption without the consent of the English court (A [2004] EWCA Civ 515).

The minimum ten week period, which is to enable the prospective adopters to get to know the child in their home, and to enable the adoption authorities to make a proper assessment, may be fulfilled in either country. It is a matter of fact and degree which the court considered in G [2008] EWCA Civ 105, a case where the prospective adopting mother has the day-to-day care of the child and the prospective adopting father lives at home but from time to time is called away on business for days or even weeks on end.

International adoption involving the parents travelling abroad to adopt has also grown. It is said that because of the difficulties for prospective or would-be adopters finding a child in England or persuading an adoption agency to place a child with them many prospective or would-be adopters look abroad. If they obtain an overseas adoption order in a foreign country they must secure recognition of that adoption order in England. Otherwise they must secure the lawful entry of the child into England under section 83 of the Act and then go through the normal adoption procedures in England. There are risks of exploitation, baby farming, financial payments, avoidance of immigration controls, and the risk of culture shock and racism for the child.

As an alternative to the old style overseas adoptions we now have convention adoptions, subject always to public policy (sections 87-90 of the Act), under the Hague Convention, Adoption (Intercountry) Aspects Act 1999, the Adoption and Children Act 2002, and the Children and Adoption Act 2006. The principles under the convention are that the best interests of the child must be safeguarded, the countries should co-operate, and there should be mutual recognition of orders. Orders should be based on free consent and the wishes of the child (so far as capable of being expressed).

The Secretary of State has a discretionary power to suspend intercountry adoptions if satisfied that the sending state is not conforming to minimum standards (R (Thomson) v Minister of State for Children [2005] EWHC 1378).An overseas adoption may be of a religious character and then formally registered, but nonetheless recognised in England if seen as genuine (Singh v Entry Clearance Officer [2004] EWCA Civ 1075).

The Narey Report

Martin Narey, formerly Head of the Prison Service and of Barnardo’s Homes, has been appointed by Tim Loughton, Minister for Children as the Adoption Tzar. Narey produced a controversial report 11 July 2011. He drew attention to the small numbers of adoptions, the difficulties for applicants to qualify, the long delays in the process, often years, the reluctance of social workers, and the particular difficulty for finding adoptions for ethnic children. He recommended speeding up the process, placing a child directly for adoption instead of via the care system, a greater willingness to promote adoption, and mixed race adoptions.

If taken on board these recommendations could help ease the process further for the benefit of both children and would-be adopters.

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